Luật học - Chapter 21: Employment law

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Employment lawChapter 21Learning objectivesAt the end of this chapter you should understand:the types of business organisations and industry sectors in Australiathe importance of employment law in the commercial sectorthe distinction between public-sector and private-sector employersthe major features of government administration and public-sector employersthe legal characteristics of both an employer and an employeethe legal principles used to determine if an employer–employee relationship existshow to distinguish an employer–employee relationship from other work arrangements involving independent contractorshow to compare and contrast the rights of employees and contractorsLearning objectives (cont.)the impact that outsourcing and the use of labour-hire companies have on the employment relationshiphow to recognise the employment relationship as a contract and explain the elements of that contractthe legal duties of employers and employees, both express and implied, and the sources of those dutieshow to distinguish between common-law and statutory duties of employers and employeesthe legal impact of duty statements and job descriptionsthe legal remedies available for breach of an employment contractthe rights and obligations of employers and employees to terminate the employment relationshipthe scope that employees have to recover unpaid employment entitlements on the insolvency of their employerLearning objectives (cont.)the remedies available to an employee arising from the termination of employmentthe operation of the statutory unfair dismissal jurisdictions and their interrelationship with common-law principles of employment lawthe liability of an employer to third parties for torts and crimes committed by employeeswhat the concept of ‘vicarious liability’ means in the employment relationshipkey rights and obligations of employers and employees for work-related injuries,occupational health and safety, equal opportunity, superannuation and information privacy, and the sources of those obligations.IntroductionAn important and distinctive component of Australian business law is employment and workplace relations law.Employment law primarily deals with the individual relationship between an employer and an employee—the employment contract.Workplace relations law concerns the broader legal framework that affects individual employment contracts, such as the systems and bodies that regulate wages and employment conditions.Structure of business organisationsPublic sectorFederalStateLocalPrivate sectorTypes of industryPrimary sectorSecondary sectorTertiary sectorThe employer–employee relationshipRecognised by law as being a contract of employmentThe existence of this relationship is central to both employment law and workplace relations law.Rules have developed for establishing the relationship.Distinguished from other legal relationships such as:Independent contractor: contracts for serviceAgent: makes a contract on behalf of another with a third partyCourt-made rules to identify employment relationshipControl test—nature and degree of control able to be exercised by a person over the manner in which the work is to be performed by anotherDelegation test—discretion of service provider to delegate work to another partyBusiness test—commercial factors showing whether working on own account or for someone elseIntegration test—is the work being performed an integral part of the business operation of the person engaging the services of the worker?Pragmatic tests—see next slidePragmatic testsOwnership of tools, equipment or stationeryMethod of remunerationPayment of superannuation, insurance or workers’ compensationDeduction of PAYG income taxUse of business name or business structureRatio of money spent to money earned after deduction of expensesWhether invoices must be submitted prior to paymentResponsibility for losses or for rectifying errors or mistakes in the quality of work doneFreedom to work for other peopleWhether the work is simply an identifiable job for a specified period of timeStatutory rulesIn recent years, a number of statues have gone beyond the court-made rules in distinguishing between employees and independent contractors.For employees, statutory compliance is required:Income tax lawsSuperannuation guarantee lawsWorkers’ compensation lawsPayroll tax lawsWorkplace relations legislationOccupational health and safety lawsContractors have protection against unfair contractsIndependent Contractors Act 2006 (Cwlth) Provides power to the court to strike down or vary contracts with independent contractors which are unfair, harsh or unconscionable.Competition and Consumer Act 2010 (Cwlth)Section 51AE: industry codes mandatoryACL Section 22: unconscionable conduct in business transactionsOutsourcing and labour-hire employmentEmployee Contract of service Labour Payment Labour-hire company Supply Payment labourBusinessFormation of the contract of employmentIntention to create legal relationsOffer and acceptanceConsiderationCapacity of parties to enter into contractReality of consentLegality of object:Restraint of tradeTerms of the employment contractExpress terms (spoken/written):Nature of workLocation of workWagesRemunerationHours of workStatement of duties/position description (employee responsibility)Terms of the employment contract—employer’s dutyImplied terms (from circumstance of offer and acceptance) to:To provide workTo provide remunerationTo not destroy or seriously damage the relationship of trustTo ensure the safety of employeesTerms of the employment contract—employee’s duty Implied terms (from circumstance of offer and acceptance): To work in a skilful and competent manner, and to exercise reasonable careTo obey an employer’s lawful and reasonable directionsTo provide faithful service (also known as the duty of fidelity)To not prejudice an employer’s interests or act in a manner hostile to the employer’s interestsTo maintain confidentiality (e.g. not to disclose trade secrets)To account for moneys and property received on behalf of the employerTo hand over inventions made during the course of employmentTo disclose to an employer information relevant to the business of the employerTerms of employment created by the workplace relations systemIn addition to the common-law express and implied terms of the employment contract, there are other legally recognised terms of employment contracts.These are prescribed by the workplace relations system, which can take one of three forms:terms set by statuteterms set by industrial bodiesterms set by employment agreements made under workplace relations legislation (statutory employment agreements).Terms set by statuteFederalFair Work Act 2010 (Cwlth)National Employment Standards, freedom of association, rights on termination of employment, etc.State examples:Annual Holidays Act 1994 (NSW)Long Service Leave Act 1922 (Vic)Terms set by industrial bodiese.g. Fair Work Australia:Minimum wage ratesClassificationsLeave entitlementsLawful termination of employment contract Termination by deathTermination by dissolution or bankruptcy of the employerTermination by sale of business by the employerTermination by frustration of contractTermination by abandonment of contractTermination by breach of contractTermination by noticeTermination without noticeRedundancySuspension of employeesUnlawful dismissal—Fair Work Act 2010 (Cwlth)—prohibited reasons Temporary absence from work because of illness or injury (of a kind set out in the relevant regulations)Trade union membership or activities, or non-membershipActing, or seeking to act, as a representative of employeesFiling a complaint or participating in proceedings against an employerEngaging in legally protected industrial action or refusing to engage in industrial actionSeeking to conduct a secret ballot of employeesProhibited reasons for dismissal (cont.)Being entitled to the benefit of an industrial instrument or orderTemporary absence due to voluntary emergency management dutiesTemporary absence due to carer’s responsibilitiesRace, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin (unless the reason for termination is based on the inherent requirements of the job or the employee is a member of the staff of a particular religion and the termination is made in good faith to avoid injury to that religion)Absence from work during maternity or parental leaveRemedies may include order for reinstatement or compensationUnfair dismissalsAllows a dismissed employee to seek independent review of the reason or method of dismissal.Is the dismissal 'harsh, unjust or unreasonable‘?Assessment based on objective analysis of all circumstances applicable to employer and employee, using 'reasonable person test’ based on contemporary standards of industrial fairness Fair Work Act applies principle of ‘fair go all round’Reason for dismissal and procedural fairness consideredConstructive dismissalsRemedies for unfair dismissals Fair Work Act 2010 (Cwlth)Employee must be within included categories.Been employed for at least 6 months or 12 months if employed in a small business. (Note Small Business Fair Dismissal Code)Must apply to Fair Work Australia within 14 days of the alleged unfair dismissalProcess of conciliation and arbitration if necessaryIf successful, employee may be re- employed in the same or alternative position, or paid compensation..Remedies for breach of the employment contract Employer’s remedies:Termination of employmentDamagesInjunctions and specific performanceSuspension of an employeeOrders by an industrial tribunalRetrainingDisciplinary proceduresContract negotiationPrivate mediationWithdrawal of discretionary benefitsReallocation of duties or hours of workRemedies for breach of the employment contract (cont.)Employee’s remedies:ResignationDamagesInjunctions and specific performanceUnfair dismissal proceedingsUnlawful termination claimClaims for sums dueOrders by an industrial tribunalLiabilities and rights of employers and employees to third partiesVicarious liability:Employer is liable to a third party for negligent acts or omissions of an employee, carried out in the course of employment, where these acts or omissions cause loss or damage to a third party.Liability for contracts:Employer is liable for contracts entered into by an employee as agent of employer.Employee liable for contracts if they act outside of authority given by employer.Liabilities and rights of employers and employees to third parties (cont.)Liability for criminal actsCriminal acts of employee conducted in course of employment in strict liability cases without intention to commit the act results in vicarious liability. Employer liable—where at direction of employerEmployee liable—no employer direction but intention to commit the actsExamples of statutory regulation of employment relationshipWorkers’ compensationOccupational Health and SafetyDiscrimination and equal opportunity legislationOccupational superannuationWorkplace privacyWorkers’ compensationFederal and state legislationProvides wage and salary maintenance and prescribed benefits for injured workers, e.g.PensionsLump sumsMedical expensesWorkers’ compensation—coverageWork-related injuries'Worker' as defined in legislationInsurance obligations:Mandatory workers’ compensation insurance required by employers with 'WorkCover’Workers’ compensation—employee benefitsWeekly benefits for initial periodMedical and hospital benefits are coveredEconomic and non-economic losses, (usually based on impairment levels or estimated future earning capacity)Retirement provisionsWorkers’ compensation—obligationsEmployer’s obligations are to:cooperate with rehabilitation programskeep the employee’s position open for a specified periodprovide suitable alternative employment where practicablekeep records.Employee obligations are to:make reasonable efforts to return to work.Workers’ compensation (cont.)Common law access: depends on relevant legislationDispute resolution: depends on relevant legislationOccupational health and safetyAt common law, employers have an implied duty to protect the health and safety of employees.Employer owes a duty of care to employees.These laws have been supplemented by specific occupational health and safety legislation that expands the common-law obligations.Duty of careDiscrimination and equal opportunity legislation (federal)Human Rights and Equal Opportunity Commission Act 1986Equal Employment Opportunity for Women in the Workplace Act 1999Racial Discrimination Act 1975Sex Discrimination Act 1984Disability Discrimination Act 1992Workplace Relations Act 1996Types of discriminationRace SexMarital statusPregnancySexualityPolitical or religious beliefDisabilityPhysical impairmentIntellectual impairmentAgeFamily responsibilitiesAlso note prohibition against sexual harassment.Discrimination and equal opportunitycomplaints and disputes Conciliation resolution at disputes TribunalAffirmative actionEqual Employment Opportunity for Women) Act 1999 (Cwlth)Employers with 100 or more employees must:develop and implement an equal opportunity programtake measures to promote equal opportunity for women in employment mattersregularly report to a statutory office holder on the development of these programs.Age discriminationIn July 2004 federal parliament enacted the Age Discrimination Act 2004 (Cwlth).This outlaws both direct and indirect discrimination in employment on the grounds of age.There are important qualifications and exemptions.Occupational superannuationTo fund and maintain living standards for an ageing population in the future. Requires employers to make superannuation contributions on behalf of their employees at a prescribed percentage of the employee’s wage or salary, as defined by the legislation, to a complying fund.Rate since 2002–03 = 9%Workplace privacyIn December 2001, new Commonwealth laws came into operation that impose privacy obligations on private sector organisations.They regulate the manner in which private sector organisations (including employers) handle ‘personal information’.Ensure that collection, security and disclosure processes are compliant